IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-48623-2025 Date of Decision: 01.09.2025 SUNNY KUMAR ALIAS SUNNY ......... Petitioner Versus ARVINDER PAL SINGH ….... Respondent CORAM: HON'BLE MR. JUSTICE YASHVIR SINGH RATHOR Present : Mr. Devender Thakur, Advocate and Mr. Harsh Bhardwaj, Advocate for the petitioner.

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YASHVIR SINGH RATHOR , J. (Oral)

1. Present petition has been filed under Section 528 of BNSS, 2023 seeking setting aside of order dated 24.01.2025 (Annexure P-2) passed by the learned Judicial Magistrate 1^st Class, Jalandhar in NACT No.3564 of 2020 and for quashing of order dated 07.07.2025 (Annexure P-5), vide which, the revision petition filed by the petitioner against the aforesaid order has also been dismissed.

2. Learned counsel for the petitioner argued that petitioner filed an application under Section 311 Cr.P.C. praying for recalling of order dated 24.01.2025 (Annexure P-2) but the same was rejected by the Trial opportunity to cross examine the complainant was treated as nil. Learned counsel further contended that petitioner is an accused in the complaint under Section 138 of Negotiable Instruments Act, 1881 (for short ‘N.I Act’) and without cross-examination of the complainant, he shall suffer an irreparable loss and injury. Learned counsel submitted that there was no deliberate intention on the part of petitioner in not cross-examining the complainant and infact his counsel was not available. Learned counsel lastly submitted that learned Trial Magistrate has erred in declining the application under Section 311 Cr.P.C. vide impugned order dated 07.07.2025 (Annexure P-5) and same is liable to be set aside.

3. I have heard learned counsel for the petitioner and material on file has been perused.

4. A perusal of the record shows that complaint under Section 138 of N.I Act was filed by the respondent against the petitioner wherein complainant appeared for his cross-examination on several dates but accused failed to cross-examine him for one reason or the other and the cross-examination was ordered to be treated as ‘nil’ due to non- appearance of his counsel. Thereafter, petitioner moved an application under Section 311 Cr.P.C. for recalling of complainant which was declined vide impugned order dated 07.07.2025 (Annexure P-5). It was observed that several opportunities have been given to the accused to cross-examine the complainant and he has failed to cross-examine him without any sufficient cause. No doubt, the impugned order cannot be faulted with as Trial Court had no other option but to treat the cross-examination as ‘nil’. However, the Court cannot ignore the fact that petitioner/accused is being prosecuted in a complaint under Section 138 of N.I Act and the cross- examination of complainant is essential for the just decision of the case and for giving an opportunity of a fair trial to the accused as well. In case, accused is not allowed to cross-examine the petitioner, he shall suffer an irreparable loss and he will not be able to set up his defence to the charge/notice. On the other hand, no prejudice will be caused to the complainant in case the accused is allowed to cross-examine him and accused can be burdened with cost so as to compensate the complainant.

5. Resultantly, the present petition is allowed and order dated 24.01.2025 (Annexure P-2) vide which the cross-examination of petitioner was ordered to be treated as nil and order dated 07.07.2025 (Annexure P-5) vide which the application seeking permission to recall the complainant for cross-examination were dismissed are set aside. Learned Trial Court is directed to afford one effective opportunity to the accused to cross-examine the complainant, subject to the payment of cost of Rs.20,000/- to be paid to the complainant on his appearance before the learned Trial Court. It is made clear that no further opportunity will be granted to the accused-petitioner for the purpose of cross-examination of the complainant and costs will be paid